Mubashir Ahmad Vs The State

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IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

Cr.Misc:BA No.204-B of 2023

Mubashir Ahmad Vs Thc Statc ctc

ORDER

I)atc ol'hcaring 20.04.2023

Iror pctitioner: Mr. Fida tjllah Khattak Advocatc

lior rcspondcnt: Mr. Abid Anwar Khatlak Advocatc

lror Sl.atc: Mr. Ilabib Llllah Khan, Asstt. A.G.

DR. KHURSHID IOBAL, J.--- Pctitioncr (Mubashir Ahmad) sccks his rclcasc on bail in casc lrllt No.880 datcd 06.11.2022 undcr scctions % 3021427134 PPC ol Policc Station Karak, District Karak.

2.lracts ol thc casc as narratcd in thc Iilll are that on 06.11.2022, complainanl, Inzimarn-ul-llaq, took thc dcad body of his brothcr to thc KI)A I Iospital, Karak, and lodgcd a rcport that on thc cvcntful day, hc alongwith his cousin Abdul Latil and dcccascd brothcr 'l'ariq lJmar, wcrc going to

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Karak from Jail Chowk.'l'hc complainant and Abdul Latif wcrc procccding on onc motorcyclc following thc dcccased, who was procccding on anothcr motorcyclc a littlc ahcad. At I l:30 hours, whcn thcy rcachcd ncar Ilabibi Ilotcl, a motorcyclc drivcn by thc prcscnt pctitioncr / accuscd with co-accuscd T.ccshan sitting bchind him camc lrom thcir back sidc and on rcaching ncar thc bikc of thc dcccascd, co-accused T,ccshan startcd firing at him through his pistol with murdcrous intcntion, duc to which, hc was hit, fcll on thc ground from his motorcyclc and dicd on thc spot. 'l'hc accuscd aftcr commission of thc offcncc dccampcd liom thc spot. Motivc for thc k olfcncc as discloscd is prcvious blood lcud bctwccn thc partics.

3.Argumcnts of lcarncd counscl lor thc partics as wcll as thc woflhy Assistant Advocatc (icncral rcprcscnting thc Stalc hcard and thc rccord pcruscd with thcir valuablc assistancc.

4.'l'hc main argumcnt ol lcamcd counscl lor thc pctitioncr is that thc pctitioncr has not bccn attributcd an cffcctivc rolc of firing at thc timc o[ thc occurrcncc. Indccd, it is so. 'l'hc rccord, howcvcr, also rcflccts that thc pctitioncr was driving the

motorcyclc on which co-accuscd T,ccshan was sitting bchind him, who opcncd firing at thc complainant party, as a rcsult ol which, onc 'l'ariq tJmar was killcd. It finds that it was thc pctitioner who playcd thc rolc ol'a lacilitator. In thc casc ol uSirai and another Vs The Stote" (2000 PCT.LJ 1220 Pesha ) accuscd had sought his rclcasc on bail, mainly on thc ground that thc rolc of cffcctive hrc shots was attributcd to co-accuscd. I Iowevcr, thc Cou( whilc dcclining thc conccssion so sought, hcld that at bail stage, it is not matcrial [o scc as 1o whosc firc hit whom as thc common attack launchcd by thc accuscd with absconding co-accuscd indicatcs thcir w common intcntion, as such, cvcry accuscd would bc liablc to thc criminal act as i[ it was donc bv him alonc. Similarly, in thc casc of "Sher Bahadar Vs Ha I Gha o r Ali Khsn and anolher" 999 PCT.LJ 403 Peshawar) this Court whilc rccalling bail, allowcd to an accuscd pcrson, has hcld that mcrc fact that thc allcgations against thc accuscd arc gcncral in naturc and no spccific injury sustaincd by victim has bccn assigncd to accuscd, would not makc casc against him onc of lurlhcr inquiry. 'l'hc doctrinc ol lu(hcr inquiry / rcasonablc grounds has

bccn dcfincd and claboratcd by thc Suprcmc Court of Pakistan in a numbcr of cascs. An earlicr casc is of "Arbab Ali v. Khamiso and others" 1985 SCMR 195 whcrcin it was hcld that " It nceds to bc clarificd that bail ca be allowcd (in a casc othcrwisc allcgedly falling undcr thc prohibition containcd in subscction ( I ) o[ scction 467 undcr subscction (2) ol scction 487, Cr.P.C. whcn thcrc arc sulficicnt grounds, lor furthcr inquiry into thc guilt of thc accuscd but only on thc condition whcn thc Police Officcr or thc Court at any stagc ol invcstigation, inquiry or trial, as thc casc may bc, comcs to a dcfinitc conclusion that thcrc arc no rcasonablc grounds lor bclicving thal thc accuscd has committcd a non- Ilailable olfence. Without this finding bail cannot bc allowcd undcr subscction (2) on mcrc ground that thcrc arc sulficicnt grounds f lurthcr inquiry."

5, 'l.hc latcst casc is o[' " Fohutl llussain v. The State" 2023 SCMR 364. In this casc (though bail

was grantcd), it was cxplaincd in thc lollowing words:

"ln ordcr to asccrtain whcthcr rcasonablc grounds cxist or not,

lhc Coufl should not probc into thc mcrits of thc casc, but rcstrict itsclI to thc rnatcrial placcd bclorc it by thc prosccution to scc whcthcr some tangiblc cvidcncc is availablc against thc accuscd pcrson(s) . Rcasonablc arqunds

arc thosc which may applal to a

rcasonablc iudLcial rnind, as

opposcd to mcrcl y capricious, irrational concoctcd and/or Lw illusory grounds."

6.In thc casc in hand, it is prima facie sccn that thc pelitioncr played thc rolc of a facilitator as discusscd abovc. Morcovcr, lcamcd counscl for thc petitioncr submittcd at thc bar that complctc challan has bccn put in thc Cou( and thc trial has commcnccd. ln thc likc circumstanccs, thc Apcx Court whilc dcclining bail to an accuscd pcrson has hcld in thc casc of "Said Akbar and qnother Vs Gul Akbar and unolher 996 SCMR 931 ) that:

"Sccondly wc havc bccn informcd that casc in thc 'l'rial

Court is ripc for rccording of cvidcncc and cvcn datc is fixcd lor that purposc. Sincc rccording ol cvidcncc in thc 'l'rial Court is about to commcncc, this Court normally docs not intcrfcrc with ordcr of

thc IIigh Court rcgarding bail."

7.'l'hc law laid down in thc judgmcnt (supra) was also followcd by this Court in thc casc of "Malov Khan Vs The Slote and anolher" (2021 MLD 379 Peshawa ).w hcrcin it was hcld that:

"7. It furthcr transpircs from the rccord that trial against thc ilt accuscd / pctitioncr has commcnccd and so far thrcc PWs havc bccn cxamincd. In such situation, rclcasing thc accuscd on bail can hampcr thc trial as it is now wcll scttlcd that accuscd should not bc rclcascd on bail whcn its trial is in progrcss."

8.'l'hus, whilc making tcntativc asscssmcnt of cvidcncc on filc and dcriving wisdom lrom thc law laid down in thc judgmcnts rcfcrrcd to abovc, I hold that kccping in vicw thc lactum o[ prcvious blood fcud bctwccn thc partics vis-d-vis thc rolc ol

facilitation so playcd, thc common intcntion of thc pctitioncr / accuscd to do away with thc lifc of thc dcccascd, is apparcnt at this stagc. 'l'hc pctitioncr / accuscd bcing prima .facie conncctcd with thc commission of thc offcncc is not cntitlcd to thc conccssion of bail. Ilcsultantly, thc instant bail pctition stands dismisscd. 'l'his ordcr is bascd on tcntativc asscssmcnt of thc rccord. It shall havc no bearing on thc mcrits ol' thc trial at thc trial.

An nounccd

(Ghaloor Zaman)

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(S-B) llon'ble Mt. Juttice Dr, Khutshi.l lqht,l